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Mich. Court Creates Defense In Child Support Cases

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DETROIT (AP) - The Michigan Supreme Court broke new ground Tuesday in criminal cases involving unpaid child support, saying poor parents can defend themselves by showing it was impossible for them to come up with money.

Michigan for years has operated under a strict liability standard in cases of failure to pay support, even if a parent was broke. Critics, however, have said it’s unconstitutional to punish poor people when they had no intent to break the law, especially in a state with a struggling economy.

In a 4-3 decision, with Republicans in the majority, the court gave guidance on how it should work, but it’s still not easy. The justices said there must be a good-faith effort as well as proof that a defendant couldn’t pay support through no fault of his or her own.

The court says all avenues must be exhausted, such as a job search, the sale of assets, refinancing a home or lawful attempts to get cash.

“Defendants must not only establish that they cannot pay, but that theirs are among the exceptional cases in which it was not reasonably possible to obtain the resources to pay,” the majority said in an opinion written by Justice Mary Beth Kelly. “A defendant’s failure to undertake those efforts reflects an insufficient concern for paying the debt one owes to one’s child, which arises from the individual’s responsibility as a parent.”

But Democratic justices said the new standard favors prosecutors and is a “nearly insurmountable barrier” for poor people who simply are unable to pay child support. Justice Marilyn Kelly said Michigan’s rule still is stricter than rules in 49 states.

“As Michigan has long recognized, it is only the willful, the recalcitrant, the obdurate or deceitful who are imprisoned for failing to meet their financial obligations,” Kelly wrote. “In light of the majority’s holding, we can now add to that list those who are unable to pay and cannot obtain the resources to pay.

“I believe that the majority’s impossibility-to-pay defense will prove grossly unjust in its application and that it is fundamentally unconstitutional,” she said.

The Supreme Court ruled in a case involving an Oakland County woman who had been convicted of failing to pay child support. The court overturned Selesa Likine’s conviction and granted her a new trial, saying that she should be allowed to present evidence that mental illness and other problems made it impossible for her to keep up with child support. A judge had prevented her from presenting that evidence during trial.

The court, however, did not grant similar relief to two other people convicted of failing to pay child support because one pleaded guilty and the other did not argue at trial that it was impossible for him to meet his obligations.